The Telecommunications Act of 1996 imposes limitations on a local government’s ability to deny permits to construct telecommunication towers. These include, among others, prohibitions against discrimination, a review of applications within a reasonable timeframe, and a requirement that application denials be “in writing and supported by substantial evidence contained in a written record.” See 47 U.S.C. §332(c)(7)(B)(i)-(iv). The statute juxtaposes these restrictions against an express preservation of a local government’s “decisions regarding the placement, construction, and modification of personal wireless service facilities.” Id. at § 332(c)(7)(A).
Recently, some courts have strictly construed Section 332(c)(7)(B)’s prohibitions. For example, last week, the 9th Circuit U.S. Court of Appeals held that a local government’s requirement that municipal voters approve certain constructions was not subject to the prohibitions of Section 332(c)(7). In Omnipoint Commc’ns Inc. v. City of Huntington Beach, — F. – -, 2013 WL 6486240 (9th Cir. Dec. 11, 2013), a seventeen year-old voter initiative amended the local government’s charter to require city council and voter approval before construction costing more than $100,000 occurred on city-owned property. After initially approving the carrier’s siting of antennas in a city park within a reasonable time but discovering that the construction costs exceeded $100,000, the local government required that the construction be approved by voters. The carrier filed suit arguing that Section 332(c)(7)’s restrictions barred applying the voter-initiative requirement to the proposed construction.
The Omnipoint Court first held that Sections 47 U.S.C. §332(c)(7)(B)(i) and (iv) preempt local legislative land use regulations or decisions,[1] and Sections 47 U.S.C. §332(c)(7)(B)(ii) and (iii) preempt local adjudicative decisions that do not conform with the stated minimal procedural requirements.[2] Notwithstanding these conclusions, the Court then concluded that the voter-initiative requirement was not a legislative land use regulation because it was not promulgated by local government authorities authorized to engage in legislative land use decision-making. Further, the Court determined that the voter-initiative requirement was not a local adjudicative land use constraint because the voters “need not consider whether the project meets any particular criteria, and their determination is not subject to review or appeal…” As a result, the Court held that the voter-initiative fell outside the local government’s zoning and land-use decision-making process, and that the restrictions on local authority in Section 332(c)(7)(B) did not apply. The Omnipoint Court’s construction of the Section 332(c)(7)(B) is another example of how local governments are able to avoid the preemptive effect of federal communications laws to impose strict land use controls over the deployment of communications networks.